People always have the idea of a judge and their position all mixed up. Some people view a judge as this all empowered figure that has a lot of control and say in what the end result will be in the case, which is somewhat true. And others think the judge is just a figure head in the whole grand scheme of things in cases. Well, they’re sort of right as well. Judges are considered to be a neutral third party that guide the case from the initial stage to completion, ruling on procedural and evidentiary issues and the like. Evidentiary issues are matters concerning evidence. Everything that is being judged and ruled on in the case usually involves evidence of the matter at hand, and not everything is evidence either.
Judges are both elected and appointed, depending on their seats. In Michigan, state court judges are elected and hold their seat for a set term until that seat is up for re-election again. Federal judges on the other hand appointed for life. It’s very hard to remove a federal judge, unless they were doing something improper, which is usually unlikely, given the type of people they are.
The judge is in charge of making sure the case goes smoothly and according to the procedural and evidence rules. Procedural rules concern procedures of the case, while evidence rules control rules of evidence. Procedural rules concern the time and matter the case is heard. Rules of evidence usually govern what is and what isn’t considered evidence.
The judges also control what rules, laws, and so on apply. For example, in a criminal case, the judge hears and decides whether there was probable cause to arrest a potential defendant. When the cop takes the stand, the attorney questions the cop and the judge listens to see and make a determination of whether the case will proceed or whether the charges will be dropped. Usually, depending on the facts of the case at hand, the attorney can decide to hold or not to hold the evidentiary hearing. A judge also hears pleas in criminal cases and makes sure that the defendant understands his or her rights in the proceedings and is also allowed to make a determination as to whether or not to grant bail and the amount that bail is set at.
Throughout the case, up until the date of trial, attorneys battle each other by filing motions to get an edge and shape the case. For example, the defense attorney might submit a motion to suppress some evidence in the case that the prosecutor is seeking to use. A motion is a hearing at which both sides submit briefs in support of their positions. Within the briefs, the attorneys state what their legal position and basis is for those positions. A motion to suppress evidence is a motion seeking to keep a piece of evidence out of the consideration of the jury, or judge, whomever is the fact finder of the case. This has the benefit of dramatically helping a side in their battle, especially if that piece of evidence is crucial to the case.
The judge also decides sentencing, among other points in the criminal defense case. The judge can also act as the jury, or in other words, the fact finder. Prosecutors tend to favor judges since most judges used to be prosecutors.
An assault and battery charge is a criminal charge. In Michigan, depending on the variation, it may be a felony or a misdemeanor. The court that handles the charge will depend on the severity of the charge, whether it is a felony or a misdemeanor. If the assault and battery charge is a felony, it will likely be heard in the circuit court, as opposed to the misdemeanor lower charge, which will be heard by a district court in the city or jurisdiction it was charged in. Now, either way, whether it’s a felony of misdemeanor, you should always, always, always hire an attorney!
Why Should I Hire an Attorney?
It’s important to hire an attorney for a number of reasons. The criminal justice system is hard to understand and navigate. In addition, the cops aren’t always right when charging, they make mistakes, and some just flat out lie. You would ask, wouldn’t the prosecuting attorney correct any mistakes made by the officers? Nope. The prosecutors and the cops are on the same side and they back each other up. The prosecutors don’t have much to gain by lowering or just dismissing your case all together. The prosecutors are not on your side, and in fact, it will look better on their offices and resumes the more convictions they obtain.
There are a number of variations of assault and battery crimes under the Michigan penal code. You can look up MCL 750.81 to get an idea of the definition of the crime that you will be charged with. The prosecuting attorney has the burden to prove each and every element under that code to the jury, the standard to convict is without a reasonable doubt, which is a very high burden to meet.
A misdemeanor can carry up to 93 days in jail or a felony assault and battery charge, depending on the circumstances, damage caused, the victim, your prior history and record, could carry a couple years or so. Your jail or prison time will increase substantially if you had a weapon on your or were on probation at the time the assault and battery occurred.
What About a Public Defender?
Per your constitutional right, everyone has a right to an attorney. This is only in the case of criminal charges, not civil cases. With that in mind, if you cannot afford an attorney to defend you, then you will be appointed one by the court. The court has leeway in appointing a criminal defense attorney for you that is paid by the state. These attorneys, contrary to popular belief, are indeed very good attorneys and very good at what they do. Their only drawback is that they don’t get paid very much and therefore aren’t able to devote as much time as you would like them to on your case.
Attorneys have ample ways to defeat a criminal case prior to it having to go to trial through a series of hearings or on motion. The first is when you’re arraigned, which is your time to state whether you plan on pleading guilty or not guilty. Then you have a series of hearings, such as when you put the police officer on the stand to show the court whether or not there was probable cause in arresting you.
There is plenty a criminal defense attorney can do for you in your defense, but one thing is for certain, you must hire one!
When you purchase a house, there is a contract that governs the transaction between the two parties. Purchase agreements dealing with residential properties are often standardized forms that are used throughout this industry. Only certain terms are changed from deal to deal. Real estate agents usually use their own standard forms when it comes to purchase agreements, their forms, and terms. We would always encourage you to hire an attorney when purchasing a house. In this article, we will over the standard purchase agreement and the major terms that are included.
A retained real estate broker, or more likely the real estate agent, is the person that would structure the deal, not so much a real estate attorney. In some states though, attorneys are involved in the closings. The agents draft the purchase agreements and get both sides to agree on the terms. The deal is closed on the closing date at escrow, when both sides meet all the terms of the purchase agreement.
Real Estate Law Purchase Agreements
Real estate purchase agreements are legally binding by both parties that agree to them, the buyers and sellers. The buyers buy the property with the seller selling. They include terms such as the price, closing date, and closing conditions.
Price: The prices of the property is contained in the purchase agreement. This is usually negotiated by both parties and is the single biggest deal maker or breaker. The price stays the same unless there is some surprise in the condition of the home that would usually allow either party to bargain by changing the price.
Condition: The condition of the house is stipulated in the agreement, whether it’s sold gutted, as is, with or without repairs, and everything else involved with the condition of the house. There is usually a stipulation in the agreement to allow for a walk through for the buying party to walk through the house before the closing date to make sure that it meets the conditions specified in the agreement.
Closing: There is a clause in these agreements regarding the closing date and place. The title company will usually issue a title policy commitment against the house guaranteeing a clean title. The house cannot close or become insured unless all the terms have been met of the closing sheet. During the closing, make sure that either your real estate attorney or real estate broker is present to make sure all the requirements of each party has been met. This becomes a sticking point too if there is a mortgage involved because the mortgage company has their conditions that must be met as well.
Inclusion in sale: Many times, appliances along with pieces of furniture are also included in the sale. The purchase agreement should list and state with specificity everything that is or is not included in the sale. There are often disagreements after closing on what was or wasn’t included in the sale. Make sure that you’re very specific on this point, better safe than sorry.
Inspections: It’s important to make the purchase agreement contingent upon a satisfied finding in the home inspections. Usually the buyer is charged with retaining inspection companies to inspect the condition of the home and whether it meets what was stipulated to in the purchase agreement.
This list was designed to give you a brief idea on what is and what isn’t involved in a purchase agreement, perhaps a list of the important terms. There are certainly more terms and more depth to these agreements. You should consult with a real estate attorney prior to signing one and make sure you understand all the terms involved. Here is a sample purchase agreement. If you need a heads up or some advice, visit http://www.hermizlaw.com.
Michigan’s real estate market has been on a roller coaster. When referencing Michigan, we’re specifically referring to the Metro-Detroit market. During the nineties, the Michigan real estate market performed exceptionally well. The appreciation was certainly not at the clip as it was in Arizona, Nevada or California, but it was stable and steadily growing. During those years, it really made sense to purchase. The economy was stable, people were flush with cash and there were no signs that anything would be pointing to a downturn. I mean, everyone was working, everyone had cash, and the ultimate goal at that point is to purchase a home – the epitome of the American dream.
During the 2000′s, our market lagged the rest of the nation, especially the fire red hot markets of Florida, Nevada and Arizona – those markets were on fire, literally. The real estate market in Michigan had barely went up during this time, albeit it did. It was nearly impossible to get anything sold during this time, no one had any money to buy, yet not too many people were under water on their mortgages.
Metro-Detroit had crashed and burned after 2008. Perfectly nice homes were selling for a fraction of their all time high prices established a year earlier. During that time it made perfect sense to buy, but before that point, renting was definitely the way to go.
Nowadays, with the market so tight on inventory, it makes so much more sense to buy a foreclosed junker and to renovate. Because the inventory just isn’t there and builders haven’t really been building much in Michigan, there aren’t many homes on the market to purchase. When that happens, with the market being all tight and stuff, prices end up going up.
Rates, rates, rates. Now rates are another story. Mortgage rates are at an obscenely low level, never have they ever been this low. Low rates can dramatically change the cost to buy a home. Even with a mortgage, along with PMI insurance and taxes, you’re still ahead of the game by buying. And not to mention the interest payment tax right off you’ll have at the end of the year when you do your taxes. After everything is said and done, you will still end up ahead of the game.
Renting surely has its advantages. For starters, you’re not stuck in a property for a very long time and you can come and go as you please, or at least until the lease has expired. Leases are typically drawn out to last for a year or two. The length of a lease term may be as long or as short as you would like it to be, this is dependent on your goals, along with the landlord’s. On the plus side, you are rarely responsible for huge expenses such as repairs. If the HVAC system went down, the landlord would be responsible to fix. Another major repair would be repairs to the roof, structure, etc., which could run in the tens of thousands.
Here is a nice visual from our friends at the New York Times on buying versus renting.
Remember the good old days, pre-2008, when everyone and anyone would qualify for a mortgage? All you needed was a pulse and a social security number and you were golden. Everyone got approved for a mortgage and the market went up like madness. Then, starting in about 2008, everything ground to a halt. But, today everyone is proclaiming that the real estate market is back and that foreclosures are down. Then you have others that beg to differ and simply refer to this phenomenon as a manipulation of the market because homes are now being released into the market piecemeal by all the lenders and that they are sitting on record amounts of properties. So, who’s right? They both might be.
Laws Preventing Foreclosures Stymie the Market
According to this article, laws that were introduced to prevent faulty foreclosures have actually backfired and may actually end up hurting the real estate market. This law that passed that intended on protecting the home owners during the robo signing debacle has prevented the lenders from instituting foreclosure and eviction proceedings. In turn, homeowners are still living in their homes, payment free, sometimes for years. What this has done is caused a glut of shadow inventory, which means homes that are available and could be sold, but aren’t, due to red tape. In turn what is happening is new developments are sprouting up around the state while thousands of homes are waiting to be released into the market. This has the effect of limiting available inventory, and in turn, artificially raising prices, giving the market the impression that homes are simply not available.
Inevitably, the market prices are distorted and will eventually hurt those that are seeking to get into the market and purchase homes. In our opinion, this is very un-American and is undermining our system, only to produce more pain in later years when these foreclosed homes to hit the market.
Richmond, California, one of the other markets hard hit by the recession and wave of foreclosures is considering a new and exotic method for dealing with the foreclosure crisis. There, they have teamed up with a private company to seize the mortgage notes from the lenders under California’s eminent domain laws. Eminent domain is a legal method by which a public government may seize property from the owner for the benefit or betterment goal of society as a whole. What benefit will this yield? Well, what they’re going to be doing essentially is taking the mortgage notes from the lenders, such as Bank of America, Wells Fargo, and other lenders in that market, paying them what they feel is fair market value, and then re-mortgaging those properties back to the owners of the homes for what they feel is the true value of the homes. Pretty nifty idea.
I believe I read once that this idea was born out of an idea an economist had and wrote a paper on. On paper, the idea is brilliant – seize the mortgages, pay what you feel they’re worth, and re-mortgage those properties back to the residents that still live in those homes. The private company referenced that is teaming up with the city will purchase and hold the notes.
Like I said, the idea sounds good and all, but it’s yet to be determined whether it’ll actually work out as planned. Several lenders have threatened to pull out of that market and resist offering mortgages there. Some lenders have filed suit.
I believe that we have yet to exit out of the woods with this issue as the market is still full of foreclosures. It may be years until we are fully finished with this issue.